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MEDICAL NEGLIGENCE-- WHAT IT IS AND HOW TO AVOID IT? * S.RAMESH * * S.V.S.S.

SITA RAMA LAKSHMI
Objectives: The basic objective of this paper is to highlight about the various types of Medical Negligence that is being addressed in the recent years by the media and what actually constitutes Medical Negligence. Doctors can be made responsible and held liable under various sections of Civil, Criminal laws ,rules framed by MCI and other statutory agencies. Unfortunately the media and the vested interests always try to highlight the one side of the story making only the medical professionals liable for negligence, but negligence also constitutes due to patient attitude for not following the doctor’s advice and avoiding taking medicines as prescribed by the doctor. In many cases it was found that patients take alternative medicines without disclosing to the doctor and adopt various practices and unscientific beliefs damaging his health. The burden of proof of negligence, carelessness, or insufficiency generally lies with the complainant. The law requires a higher standard of evidence than otherwise, to support an allegation of negligence against a doctor. In cases of medical negligence the patient must establish her/ his claim against the doctor. Methods : Secondary data has been collected through various reliable sources of evidence adopting a scientific methodology. Results: Medical professionals those who are aware of law can take care. Ignorance of Law is not an excuse in Medical practice. Even before entering into medical profession every medical man should know the law that directly or indirectly regulates their profession. A duly qualified medical professional, i.e. a doctor has a right to seek to practice medicine, surgery and dentistry by registering himself with the Medical Council of the State of which he is a resident, by following the procedure as prescribed under the Medical Act of the State. Duties and obligations of doctors are enlisted in ordinary laws of the land and various Codes of Medical Ethics and Declarations both at national and international level. Conclusion: Professional negligence is defined as the breach of a duty caused by the omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. Medical negligence or malpractice is defined as lack of reasonable care and skill or willful negligence on the part of a doctor in the treatment of a patient whereby the health or life of a patient is endangered. PROFESSIONAL INDEMNITY INSURANCE cover became available for Doctors and Medical establishments only recently, i.e. from December, 1991. Key words : Negligence, damage, rashness, criminal law, recklessness.

V. This paper aims at giving an insight into the meaning. Recently there has been a shift from “BOLOM” to “BOLITHO” in deciding the ‘Standard of Care’ expected from doctors. considers medical negligence as a sole culprit. . ignorance towards medical ethics. facing many ethical and legal challenges in the practice of the profession. On the contrary. Doctor-Patient relationship is changing swiftly and adversely. Commercialization of modern medical practice. who in earlier days had full faith in his treating doctor. A patient approaching a doctor/hospital expects the best medical treatment available at any corner of the globe and in case the results are not favorable. Ignorance of law will be detrimental to the practitioners even if they are treating the patient in good faith. Doctors have legal duties to comply with. zero tolerance and high expectation of patients. actual status regarding medical negligence is clear from various leading judgments on medical negligence. The patient. SCOPE AND LEGAL INTERPRETATION? DR. Forensic Medicine. No doctor can afford to remain ignorant to the Ghost named “Medical Negligence or Malpractice”.P. inclusion of health care services within the ambit of Consumer Protection Act has ultimately created such a vicious circle which is manifesting as an ever increasing incidence of litigation against the doctors and hospitals. scope and legal interpretation of the term “Medical Negligence”.MEDICAL NEGLIGENCE. DMCH. Ludhiana The Medical profession has reached new horizons. Medico-legal issues emerging from landmark judgments on medical negligence will also be discussed. It is imperative that doctors from all the specialties must have a continuing medico-legal education. in their daily practice.SINGH Consultant & Assoc Prof.IT’S MEANING. now suspects negligence as a cause of his sufferings.

).87 I. provided by demeanor of the patient is legally effective and implies up to clinical examination. unconscious patient doctor can examine and treat the patient to save his life without obtaining consent but should not go beyond saving life.R. The present paper discusses the importance of consent as a defense against medico-legal litigations.CONSENT AS DEFENCE IN MEDICAL NEGLIGENCE MUNISH SHARMA1. Medico-legal litigation. implied consent is not written.It can be implied or expressed.P. 3-S. In all other circumstances properly taken consent forms an effective shield against future litigations. Forensic Medicine & Toxicology. ADARSH KUMAR2. or permission.. The expressed consent can be oral or written. except for surgical interventions in which case it is 18 years (Sec. The Section 13 of Indian Contract Act lays down that two or more persons are set to consent when they agree upon the same thing in the same sense at the same time (meeting of the mind). a person of age 12 years or above can give consent for medical examination and treatment. 2-Asst. Sections 87 to 93 of IPC deal with various aspects of consent. Professor. New Delhi. ASHISH JAIN3 1-J. In India. implied .R. Doctor has to examine or treat any patient after obtaining his consent but in traumatized. India The term consent means voluntary agreement. All India Institute of Medical Sciences.C. The commoner. KeywordsConsent. compliance.

***Assistant Professor Department of Forensic Medicine. New Delhi. Here in this presentation we would like to emphasise and elaborate upon the various aspects of consent and its interpretation by the Indian legal system in the present scenario by illustrating some recent judgments. Due to the phenomenal increase in the number of negligence suits against the medical personnel as a result of partial or lack of consent in present world. indecent assault and negligence.** MAMTA PANWAR. Failure of obtaining consent express written consent can lead to various legal issues like suits for physical assault. Key words: Consent. though recently the judgments have not considered the doctors opinion in deciding certain cases of negligence emphasising on the changing trend in the judiciary and the increasing need of the doctors to protect themselves legally. ** Assistant Professor. The impetus in the present scenario is on informed consent and greater stress is being paid on the patient autonomy in making decisions regarding the treatment options available.***MANISH KUMATH *Senior Resident.CONSENT. VMMC & Safdarjung Hospital. It is important to take a valid consent. The suits of negligence were being judged against the prescribed standards of care of the medical profession by taking evidence of medical men of repute.RECENT INTERPRETATION BY THE INDIAN LEGAL SYSTEM *MOHIT GUPTA. considering the competence. The changing face of the doctor patient relationship has once again brought forth the importance of consent in medical practice. Indian legal system. it has once again become imperative to understand the legal issues and their implications along with the remedies to safeguard the medical man. understanding and voluntariness of the patient and disclosing all information that will help the patient in judging the facts and coming to a reasonable conclusion. .

he commits a criminal wrong giving rise to criminal liability.Balamurugan. If anybody including a medical professional causes harm and injury to any person without his consent.WHAT IT IS AND HOW TO AVOID IT? R. The foremost pre-requisite of liability in criminal cases is the presence of a guilty mind (mens rea). before a person is punished for an act done by him. the mental stance of the medical practitioner will have to concur with the act before he can be tried under Section 304-A IPC. 88.” The new interpretation of Article 21 has ushered a new era of expansion of the horizons of right to life and personal liberty. and the right to live with dignity. 89 & 92 of IPC provide immunity to the medical professionals. A doctor can be tried under Section 304-A of the Indian Penal Code. No one can violate the right to life. To conclude in view of various decisions of the Supreme Court. Therefore. ‘Bolam’ test principle and Sections 87. . Thus.A CRITICAL VIEW OF SECTION 304-A INDIAN PENAL CODE THROUGH ‘MENS REA’ WITH ARTICLE.21 OF CONSTITUTION OF INDIA MEDICAL NEGLIGENCE . The right to life enshrined in this article includes right to health.Janaki Article 21 of the constitution says “No person shall be deprived of his life or personal liberty except according to procedure established by law. it is imperative to test the mental attitude of the doer so as to determine whether the intention was to do harm to the other person or not. it is emphasis that doctors are covered generally under the civil liability and hence 304-A not applicable for their negligence act except such cases the damage and its ‘amplitude’ caused to the patient is so obvious “Res ipsa loquitor” (things speak for themselves) that no proof as to the negligent act of the doctor is required. for causing death by a negligent act. P.

has ruled that to prove a case of negligence against a professional. In cases wherein negligence against a medical professional is to be proved.IS THE INDIAN JUDICIARY RESPONSIBLE FOR DIMINISHING ETHICS AND INCREASE IN MEDICAL NEGLIGENCE? MADHAV MISRA National Law University. Also the judiciary faces criticism because people contend that with the relaxations provided. the court shall presume the presence of the word “grossly” to be present before negligence. A professional can never guarantee a 100% success rate to his client. have an adverse effect since it allows doctors to be more negligent. medical negligence claims have reduced greatly in number because of these margins provided by the courts. His only job is to ensure that he possesses the skill required by a professional. State of Punjab. Medical ethics . India Introduction: The Hon’ble Supreme Court of India. Supreme Court of India. professionals tend to disregard the ethics they are expected to follow and tend to be a little more lax in their duties. Since the abovementioned rulings were brought to light in the case of Dr. Questions: What are the things need to be proved for a successful medical negligence claim? Do these discounts provided by the Indian Judiciary. It would also contain a comparison of the Indian Judiciary pronouncements with the courts of other countries and propose a model of guidelines for the proper codification of medical negligence and its related aspects. Jacob Mathew v. the degree of negligence required is much higher than that of ordinary cases. Bolam’s Test. Rajasthan. medical professional. knowing there is a less chance of prosecution? Does the age old “Bolam’s Test” still hold good in this regard? This paper endeavors to bring out the deficiencies or validity of the Bolam’s test and to define exactly what would constitute a breach of the boundaries laid down by the Supreme Court in the field of medical negligence. and wasn’t exercising his skill without reasonable competence. Jodhpur. Key Words:Medical Negligence.

Hence. The laws provide remedies for civil cases under law of torts and criminal cases under Criminal Procedure Code but there is a lack of set rules framed to decide a case of medical negligence and mainly depends on different doctrines set by precedents. legitimate expectation. reasonable care. . res ipsa loquitor. The paper also analyzes the considerations. Bolam’s test. Key words: Res Ipsa Loquitor. damages. Methods: The research for this paper has been done with an aim to analyze the civil and criminal implications thoroughly and hence is doctrinal with the main use of texts including books. reasonable man test etc. There can be instances when cases can be prima facie rejected while in some even crores of rupees can be awarded as compensation. can be criteria to determine liability on the basis of reasonableness.LITIGATION AND MEDICAL PRACTICE: WHERE DO THEY COINCIDE? KATYAYINI SHARMA. the civil and criminal implications of any act must be done on strict findings and parameters. But this does not imply that doctors are perfect. Results: There is need for statutory rules to clearly judge the liability of a doctor. Bolam’s test. ANNA GLORY TOPPO Objectives: This paper aims to study the civil and criminal implications of medical negligence. criteria on the basis of which a case can come under civil law or criminal law and thus liability can be judged accordingly. loss of reputation. journals. tests. decisions by courts and internet sources. Also the paper proposes the recommendations to improve the law in civil as well as criminal branch. Conclusion: Medical practice being a much respected profession requires great skill because a life is dependant on your acts. mens rea. There has been a deep analysis of Law related to Civil and Criminal proceedings of medical negligence because there is difference between being prosecuted for medical negligence in civil law and criminal law. common professional practice.

A satisfied consumer is the backbone of prosperity and strength of nation. . the litigation management becomes vital in the continuation and progress of every service. It aims at providing speedy and inexpensive justice to a class of litigants designated as consumers. At times. Hassan. A new type of approach has been started in the litigation procedure with the enactment of the Consumer Protection Act. The Consumer Courts expect that the element of ‘negligence’ should never be allowed to enter into the domain of professional services. The service provider should be comfortable with the prevalent legal system.The Act provides for setting up of quasi-judicial bodies vested with jurisdiction concurrently with the established courts for redressal of consumer disputes at the District. The law seeks to improve the quality in all kinds of services. It is always better to evolve meaningful dispute redressal procedures for consumer satisfaction. No legal technicalities should come in the way of rendering service with spirited commitment.THE ROLE OF CONSUMER COURTS IN MEDICAL NEGLIGENCE Rajendrakumar Hittanagi Government Law College. The professional control bodies need to re-examine policy manuals and update them taking into account the exigencies of a modern state. injury takes place. For this purpose the procedure prescribed is simple and free from technicalities. The Act imposes obligation on the service providers to render service without any ‘deficiency’. State and National levels. It is very much essential to realize the importance of self regulation. even with utmost care. It is note worthy that the level of awareness among the people regarding consumer law is raising. In the light of this development. The quality is the hallmark of every service to sustain in the competitive market. 1986. Karnataka We all understand that there is a proliferation of human needs in respect of goods and services. The suppliers of goods and providers of services have to be careful and efficient in carrying out their business.

This does not mean that morality or moral theories do not influence medical ethics. (U. The code of medical ethics expressly says that doctors should be uninfluenced by motives of profit. This is because medical aid is a matter of service to humanity. Medical ethics is a set of moral principles which guides members of the medical profession in their dealings with others concerned. The basic objective of the medical profession is thus to serve the humanity with full respect and dignity of a man due to this obligation western developed countries have invoked moldered lens of judicial response for fully providing safeguards to protect the interests of patients. Today ethical issues and moral challenges have become an increasingly complex aspect of a medical profession. Apart from the legislative control of the medical profession by the government there is yet another controlling mechanism upon medical practitioners. Present paper deals with a legal viewpoint of medical ethics with special reference to medical negligence. and practiced from a rational standpoint as is prevalent within the profession at a given point of time. but when it comes to medical profession this obligation tends to have a great importance as it is directly related public health. but instead it should be understood. Medical ethics must be peeved as involving the moral maturation of medical professionals. School For Legal Studies.P.MEDICAL ETHICS VIS-A-VIS MEDICAL NEGLIGENCE: A LEGAL VIEWPOINT PRADEEP KUMAR Department Of Human Rights.) India Medical Ethics which is a code of behavior imposed by the profession itself and voluntary accepted by doctors. Babasaheb Bhimrao Ambedkar Central University. Finally I would like to explore the Medical profession is a novel profession there should be high moral quality medical ethics to medical practitioner. . Medical ethics is not merely a moral code but also a legally sanctioned code of conduct acceptable and normal within the medical profession. In any profession the moral obligation is embedded. Lucknow-226025. during medical treatment they should be fair and concentrate.

The research question addressed in the paper is.patient relationship which was primarily based on trust into a commercial relationship.CONSUMER PROTECTION ACT. Sector-14.M. a number of medical practitioners have been interviewed in order to gain the perspective of medical professionals on the issue. Conclusion The authors have arrived at the conclusion that the consumer redressal forums haven’t been effective in dealing with the menace of medical negligence and thus. 1986 has led to the commercialization of the Medical Profession”? Method A number of cases related from the State and National Consumer Redressal Forums have been analyzed. Also. Shantha brought the services rendered by doctors within the ambit of the CPA.A v. This distinction highlights the transformation of the doctor. . The landmark judgment of the Supreme Court in the case of I. Result Yes. 1986. Dwarka. Also. there is a need for reforms. allegations of criminal medical negligence and other such issues have been touched upon by the authors so as to analyze the changing trends in the doctor patient relationship. government hospitals and doctors are exempt from liability under this act as they charge their services free of cost. the inclusion of Medical Services under the CPA. RAYAN AZMI National Law University Delhi. V. New Delhi Objective NEGLIGENCE: To examine the recent developments in medical negligence in the light of the Consumer Protection Act.P. 1986 AND MEDICAL COMMERCIALIZATION OF THE “NOBLE PROFESSION” NAMIT JAIN. 1986 has led to the commercialization of the medical profession. 1986. Trends like medical malpractice insurance among doctors clearly indicate the commercialization of the “Noble Profession” as the traditional notion of trust between doctors and patients has diminished. the increase in frivolous litigation. However. the change in the attitude of the patients towards doctors. This transformed the doctor-patient relationship into a contractual relationship wherein the doctor can be sued for a “deficiency” in service. “Whether the inclusion of Medical Practitioners within the ambit of the CPA.

There is a higher expectation of the doctors and consequently the reasonable standard of care seems inadequate. The researchers aim to explore the two lines of thought followed in two landmark judgments of the Indian Supreme Court namely the Jacob Mathew Case and the Spring Meadows case. the standard of care that is expected of doctors has also increased. There are two landmark cases that deal with the two different lines of thought. a higher standard of care is expected. Delhi.MEGHA. The researchers have concluded that with increasing improvements in medical science. From the research. There is an existing line of thought that has faded over the years. Sector 14. Dwarka. New Delhi-110078 The objective of this paper is to examine the existing trends in the Supreme Court of India with regard to medical negligence and critically analyse the standard of care that is expected of medical practitioners in cases. Up till now the courts in India have been applying the Bolum’s test. the researchers have attempted to bring out the differences in the two judgments and then determine the path forward in the field of medical litigation. The method of research used is doctrinal with the use of secondary sources. But a more progressive view was determined wherein the courts expect a standard of care that is higher than that expected in the Bolum Test. which is echoed in the Spring Meadows Case wherein a higher standard of care was required. State of Punjab. HARSHAD PATHAK National Law University. . the researchers have found that there is a weakening in the authority of the Bolum’s Test followed in many Indian cases including the Supreme Court case of Jacob Mathew v.MEDICAL NEGLIGENCE: THE EXPECTATION OF EXPERTISE J. This ushers a new era of medical litigation. In this paper. both civil and criminal in nature. The researchers have used both online sources as well as books.

Nirma University.Life! ~Emily Dickinson The paper deals with the various aspects of medical negligence its history . the duties . A doctor holds himself as possessed of skill and knowledge . responsibilities and rights of the doctor . also with the various consumer forums relating to medical negligence . Surgeons must be very careful When they take the knife! Underneath their fine incisions Stirs the Culprit . SAHANA RAJAN . when consulted he owes his patients certain duties . the doctor – patient relation/conflict in India .MEDICAL NEGLIGENCE UNDER CONSUMER COURTS EKTAA MATHUR. Gujrat Indian doctors are considered highly esteemed all over the world . In today’s generation the doctor is to be feared more than the disease because of the increasing negligence. The doctors are covered under the consumer protection act of 1986 sec 2 1 (0 ) yet they are always dragged to the consumer courts . incorrect diagnosis or sometimes even causing death . one of the most privilege class among all the professionals in the country as being ranked 1st in brain drain . Institute Of Law . all these actions are directly related to legal actions . but medical professionals commit errors despite prudence and care in their day to day medical practice such as wrong treatment . the medical law in India and the legal remedies available to the doctors under the law and CPA .